Chapter 2 - The second remedy pursued

• Introduction to Absent Justice, Parts 1, 2, and 3. In Parts 1, 2, and 3, you will be introduced to the comprehensive exploration of absent justice within the context of Australian Federal Police Investigations.
• Chapter 1 Irregular and untrustworthy. Begin the journey with Chapter 1, uncovering irregularities and untrustworthy actions in the context of tampering with evidence, setting the stage for…
• Bad bureaucrats and the establishment. Taking on the Establishment: Bad Bureaucrats and the Establishment, as explored by Absent Justice.

The house of cards  

Why weren't the COT arbitrations declared null and void after the disclosure below?

The link, beginning on page 5163 SENATE official Hansard – Parliament of Australia,  reveals that employees of Telstra allegedly embezzled millions of dollars from Telstra shareholders, including the government and Australian citizens who owned Telstra during that period. Senators Alston and Boswell's request for a Senate investigation into the Casualties of Telstra (COT cases) phone fiascos put pressure on Telstra to resolve the COT cases. Telstra and four claimants reached a proposed Fast Track Settlement Proposal in the third week of November 1993. Telstra was unable to bear the cost of further investigations into its operations, as this fraudulent activity was not limited to NSW. Several individuals threatened the COT cases as their persistence in acquiring functional phone systems was about to uncover unethical conduct at management level and other fraudulent activities at Telstra. It is astonishing that the CEO and board of Telstra were aware of the millions of dollars being illicitly taken from the government coffers, as reported on page 5163 of the SENATE official Hansard. In fact, the figures may have run into billions.

It is shocking to discover that Telstra's CEO and all members of the Telstra board were already aware of the millions of dollars that Telstra was unlawfully withdrawing from the government coffers, even before COT members and a few senators applied pressure. What's more surprising is that the COT cases, who stood for honesty and truth, received no recognition from either the government or Telstra. Instead, we have been labelled as vexatious litigants.

Our lives and the lives of our loved ones have been destroyed because we believed that our actions would benefit all Telstra subscribers. AUSTEL’s Adverse Findings, dated March 1994, confirms between Points 2 to 212 that the government, who investigated my ongoing telephone faults (when using Telstra's own fault records), commented to other government investigators that these Telstra fault records in many instances show that had it had not been through my persistence Telstra would not have located many of the problems affecting my business but several other Telstra subscribers, These same Point 2 to 212 show major faults through nt fault complaining had located faults that had benefited the broader Telstra consumer. It is surprising that AUSTEL government investigators made so many statements about how my complaints had helped others as well as myself and then concealed this evidence from the arbitrator hearing my case. In one of those major statements between Points 2 to 212, AUSTEL (now ACMA) has documented that in one incident, had I not continued to register my phone complaints in the way I did, Telstra would not have located a fault that had been in existence in one rural town for more than two years.

In my case, I have every reason to know why the government regulator deliberately concealed AUSTEL’s Adverse Findings from the arbitrator. It is unacceptable that AUSTEL permitted me to spend over $300,000 in arbitration fees between 23 November 1993 and 11 May 1995 despite having already validated the matter in their March 1994 report. I am entitled to answers and accountability.

The fact that AUSTEL’s Adverse Findings, dated March 1994, found my claims against Telstra validated. One does not have to be a genius to understand that had the arbitrator been provided AUSTEL’s Adverse Findings, his award on my financial business losses would have been substantially higher than he awarded on a claim that did not have a comprehensive log over the six-year period which AUSTEL used in which to derive at their findings as AUSTEL’s Adverse Findings shows.  

Absentjustice-Introduction File 495, dated 22 September 1994, is a transcript from an oral interview at the Commonwealth Ombudsman’s Office with AUSTEL’s representatives Bruce Matthews and John McMahon. On page 7 of this manuscript, the Commonwealth Ombudsman’s officer, John Wynack, asked: ‘What was the date the report was issued, the AUSTEL report? And Mr Matthews replied: ‘The final report was April – I can’t remember the date in April, but April 1994. The draft report was produced in March 1994, and Telecom received its copy then.

On 21st November 2007, I received from the Australian Communications and Media Authority (ACMA), under FOI, a copy of AUSTEL’s original draft findings dated 2nd / 3rd March 1994 regarding the telephone problems experienced by the Cape Bridgewater Holiday Camp from 1988 to 1994. Copied below are some of the page numbers and points in the report. I am discussing these issues in Chapter 4 to show the difficulties that AUSTEL, as the Government regulator, had in obtaining documents from Telstra (at the time, a fully Government-owned Corporation). Given these difficulties experienced by the government, it should have been enough to halt the arbitration process until all the evidence needed by all the parties was made available to allow those parties to prove or disprove each COT Case claim.

AUSTEL COT Case’s public report

Point 5.46 on page 95. ‘

As part of its direction, AUSTEL sought to obtain detailed information on each of the exchanges involved in terms of performance standards, actual performance, maintenance requirements, and achievements. Telecom initially responded with advice in terms of a few generalisations. A cooperative approach may have been expected to deliver particular requests that were necessary to obtain data. Indeed, throughout this inquiry, it has been apparent that Telecom has interpreted AUSTEL’s request for information in the narrowest possible terms. The net effect was to minimise the amount of relevant data it put before AUSTEL and lengthen the process necessary to extract it.

If the government was unable to access the documents it needed to prove the various COT Cases claims and still allowed the claimants to spend hundreds of thousands of dollars trying to access documents from Telstra that even the government regulator could not access from Telstra breached their statutory obligation to the COT Cases for allowing Warwick Smith (the administrator to the arbitrations) and Dr Gordon Hughes (the arbitrator) into forcing the COT Cases into arbitration without the necessary documents to prove they still had ongoing telephone problems. 

Without this supply of documents to the COT claimants during their respective arbitrations, it is one of the reasons we, COT Cases, could not conclusively prove to the arbitrator my telephone faults were still ongoing. The following list identifies some areas (in the AUSTEL draft report) where AUSTEL had problems with access to Telstra records on the service provided to me:

     Point 43 on page 20 “As no fault report records remain in existence from Cape Bridgewater residents prior to this period, or these records have not been provided to AUSTEL, it is difficult to gauge the level of problems in the area.”

     Point 48 on page 22 “AUSTEL has been hampered in assessing Telecom’s dealings with Mr Smith by Telecom’s failure to provide files relating to Mr Smith’s complaints.”

     Point 71 on pages 28 and 29 “AUSTEL has not been provided with the documents on which the conclusion in this briefing summary were reached, such as fault reports from other Cape Bridgewater subscribers over this period or the details of the final selector fault.  It would have been expected that these documents would have been retained on file as background to the summary.  It can only be assumed that they are contained within the documentation not provided to AUSTEL.”

     Point 140 on page 49 “It should be noted that AUSTEL’s investigation of matters relating to the RCM problem has been hampered by Telecom’s failure to make available to AUSTEL a file specifically relating to the Pairs Gains Support investigation of the RCM.  The file was requested by AUSTEL on 9 February 1994.”

     Point 160 on page 55 “It should be noted that it is hoped that a number of issues in regard to the Cape Bridgewater RCM will be clarified when Telecom provides the documentation requested by AUSTEL.”

Once AUSTEL was fully aware Telstra was refusing AUSTEL relevant information that would allow the government communications regulator to prepare its official report for the minister after the regulator facilitated the arbitration and mediation processes that were to be based on information obtained from Telstra, it is evident that AUSTEL should never have allowed those processes to proceed. AUSTEL breached its duty of care to the COT cases by permitting the arbitrations/mediations to proceed. After all, if the government could not officially order Telstra to supply records to the minister, then what hope did the COT cases ever have of obtaining the same documents?

Brian Hodged used Telstra's CCAS call line data from November 2006 to argue that phone problems were still affecting my once-owned Holiday Camp 11 years after the conclusion of my 1994/95 arbitration.

Heartbreaking 

After viewing the Cape Bridgewater Holiday Camp (SVT) CCAS data dated 29 September 1994 (see Arbitrator File No/110), Brian Hodge, B Tech, MBA (B.C. Telecommunications), on 27 July 2007, prepared a report and on page 23, (see Main Evidence File No 3) concludes:

"It is my opinion that the reports submitted to Austel on this testing programme was flawed, erroneous, fictitious, fraudulent & fabricated, as it is clear that no such testing has taken place as Telstra’s own call charge system DOES NOT record any such activities. Therefore the results are flawed or did not occur"   

On 4 September 2006, Darren Lewis provided the Hon Senator Helen Coonan, Minister for Communications, Information Technology and the Arts, with a two-page statutory declaration noting:

“Letters from us to our local Federal Member of Parliament, the Hon David Hawker, Speaker in the House of Representatives, led to Telstra visiting our business to investigate these continuing problems.

“After Telstra rewired the business including disconnecting a Telstra installed faulty phone alarm bell, we were informed Telstra had found other problems and believed who ever had installed the wiring had done an unprofessional job.

“Internal Telstra documentation provided to me by Allan Smith confirmed Telstra themselves had done the wiring.

“Jenny and I noticed that although our incoming-call rate had more than doubled once this wiring had taken place Telstra was still unable to provide a satisfactory reason as to why we were still having problems. …

“The technicians then in a hookup consultation with outside office guru’s [sic] did a fault graph reading on our 55 267267 line with the outcome that their office technical staff stated words to the affect [sic] the reading was impossible (couldn’t be correct). It was then that the local technician became quite annoyed when the technical guru insinuated that the equipment the local tech was using must be faulty. The local tech then informed the technical guru that there was nothing wrong with the equipment at all.” (See Main Evidence File No 13)

Most, if not all, of the COT cases, suffered from sleep disorders and stress for years as a result of their battles with Telstra’s senior management, who continued to deny there was ever a phone problem affecting their businesses.  It was these types of denials by Telstra employees like Tony Watson after the COT Cases that had spent hundreds of thousands of dollars in arbitration fees after the government had promised they would be fixed as part of the government-endorsed processes that caused so much damage.